18 – The Aarhus costs rules: time for reform take…

This blog is a follow-up to Blog 13.

That blog considered the joint report published by ELF, Friends of the Earth and the RSPB and which argues for the Aarhus costs protections in the CPR to be strengthened. But be warned there are other calls for reform to the Aarhus costs rules out there and they have a somewhat different perspective…

I have a Google alert set up for the words “Aarhus Convention”. And a few weeks back I got an alert for this article Cost caps for spurious legal challenges to building cost Britain dear. Ministers must raise them. | Conservative Home.

In this article it is argued by one Henry Hill (not the one whom Goodfellas is based on) that the Aarhus costs rules are far too liberal and need to be tightened. Thus it is said that the current rules:

“… almost completely de-risks even the most spurious legal challenge to any project. Would-be litigants know in advance exactly how much they need to raise, and in neither case is it a large sum. Few motivated campaigning organisations will fail to raise £10,000, and there are plenty of comfortable people prepared to throw £5,000 at such things – just think of that neighbour who personally hired a London barrister to try and shut the restaurant in the second series of Clarkson’s Farm.

Worse still, as inflation eats away at household and departmental budgets alike, it currently has no impact whatsoever on these legally-enshrined limits. So the worse things get, the better and better a bargain Aarhus offers the litigious NIMBY.”

As a result, individuals and organisations with no interest in the broader gains of a project have very little to lose, and are thus free to add months or years to a given project, with all the associated costs – and then plead the costs and delays when calling for it to be scrapped in the next round of consultations.”

Now this calling out of litigious NIMBYs is something I have great sympathy for. It is depressing at housing inquiries up and down the land to see endless objections from well to do home owning over 60s to the building of new homes so needed by the young. But the fact is that successive Conservative Governments since 2010 have done nothing but pander to such folk.

It is then said by Henry Hill, somewhat ominously, that “Happily, this problem has apparently got into the Government’s radar, and the Treasury is reportedly looking seriously at how to combat the problem.”

The article suggests there are three options for dealing with this issue. I want to look briefly at those options.

Option 1: withdraw from the Aarhus Convention

The article says of this option:

“In happier times, where the Conservatives were confident of winning the next election, the former might have been a goer. As I wrote last month, there is a real democratic question to ask about the extent to which international agreements, once largely confined to international relations and high diplomacy, now overshadow domestic government.

But there is little purpose in doing so now, when Labour would presumably just rejoin it – something to bear in mind when any minister talks about withdrawing from the ECHR.”

Withdrawal would be a nuclear option but it is interesting to note that but for Brexit this is an option that would not have been on the table at all. Remember the extreme pressure that Ireland came under from the EU to join the Convention?

Option 2: seek a formal renegotiation of it

On Option 2 it is said:

“A renegotiation runs into the same timing problem. It might work, assuming the other parties were agreeable – although as Britain Remade shows, they don’t all have the same problem the UK does when it comes to getting things built. But such a process would almost certainly not bear fruit by the next election.”

This alleged option is pie in the sky. There are 47 parties to the Aarhus Convention including the EU. The idea that the UK could ever successfully negotiate the terms of the Aarhus Convention is somewhat delusional.

Option 3: raising fees

The article makes its most convincing arguments for the raising of fees and says that “this option is reportedly being debated at the Treasury.” The argument is as follows:

“There is a surely unanswerable case for at least uprating them with inflation (and perhaps setting up a mechanism to do so automatically in future), and certainly leeway for raising them further to try and strike a better balance between access to justice and getting anything done.

The Convention might be big on “environmental democracy”, but lawfare – allowing those with the money and/or expertise to enter the privileged arena of the courts to block projects with much broader benefits – is not democracy.

This leaves two questions. First, how high to the caps need to be raised in order to have an appreciable impact and reduce friction in the system? Poor data collection on how much the current regime has actually cost makes this difficult to judge.

Second, how high could they get before running the serious risk of a judicial review striking down the new limits as prohibitive, and thus contrary to the United Kingdom’s obligations under the Convention? Because, as is generally the case, nice but vague international obligations ultimately translate into substantial discretionary power for judges.”

Conclusions

So, my view is that our current Aarhus costs rules work reasonably well. I think the suggestion that they currently deter litigation is overblown. The suggestion that they wildly encourage it are also overblown. I think we should leave our Aarhus costs rules well alone.

I would reject the calls on both sides of the debate for radical change to these rules.

Authors

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.